McCoy v. State

168 Ga. App. 598 (1983)

310 S.E.2d 2

McCOY v. THE STATE.

66774.

Court of Appeals of Georgia.

Decided October 3, 1983.

Rehearing Denied October 25, 1983.

Henry E. Williams, for appellant.

Henry Lee McCoy, pro se.

Thomas H. Pittman, District Attorney, for appellee.

BANKE, Judge.

On appeal from defendant's conviction of armed robbery, kidnapping and possession of a firearm by a convicted felon, his appointed counsel has filed a motion to withdraw and supporting brief pursuant to Bethay v. State, 237 Ga. 625 (229 SE2d 406) (1976). After considering the points raised in the brief and conducting a thorough examination of the record and transcript to determine independently whether there is any ground for reversal, we are in agreement with counsel that there is no arguable merit to the appeal. Therefore, this court grants the motion to withdraw and affirms the conviction. We are satisfied that the evidence adduced at trial was sufficient to enable any rational trier of fact to find the defendant guilty of the crimes charged beyond a reasonable doubt. See generally Crawford v. State, 245 Ga. 89 (1) (263 SE2d 131) (1980).

Judgment affirmed. Deen, P. J., and Carley, J., concur.

In a motion for rehearing, the defendant contends that the trial court improperly sentenced him as a recidivist because in doing so it considered convictions not yet final. The position adopted by the state at the sentencing hearing was that the offenses charged in the *599 indictment for which the defendant was on trial could be considered in determining his status as a recidivist. The transcript suggests that the trial court accepted this argument, although it was clearly erroneous. See OCGA § 17-10-7 (Code Ann. § 27-2511); Croker v. Smith, 225 Ga. 529 (4) (169 SE2d 787) (1969).

However, the state also established without objection that the defendant had been convicted and sentenced to confinement for a 1977 robbery, and this fact was properly alleged in the indictment. Thus, the trial court was both authorized and required to sentence the defendant as a second offender pursuant to OCGA § 17-10-7 (Code Ann. § 27-2511).

Motion for rehearing denied.